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    I “Loaned” it to You, Give it Back! You Gave it to Me, I’m Keeping it!” Part Two
    Posted: 2011-01-10 06:42:33

    By Laurie Lonsdale

    The fact is, some verbal agreements ARE enforceable depending on the context of the agreement and if it meets certain conditions that satisfy the court.  As such, it is up to the court to decide what evidence to accept in each individual case.

    The party alleging the contract (Plaintiff) is responsible for proving the probability of the contract’s existence.  However, to defeat the Plaintiff’s claim, the ‘Defendant’ can argue that such a contract did not exist, and could base their defence on one of these three points: 1) Was there an offer made and an acceptance of that offer, and/or a meeting of the minds? 2) Was there ‘consideration’, whereby there was an exchange of money or goods for services, in order to form a contract? 3) Is the Plaintiff suing the proper party?  If the answer is ‘NO’ to one or all three of these questions, chances are likely that the Plaintiff’s claim would be dismissed.

    Some agreements MUST be in writing to be valid, including but not limited to the sale of real estate or tangible property in excess of $500 and the transfer of copyright ownership.  Because these written agreements are difficult to dispute, it’s best to take your cue from them and treat all agreements the same.  Whether dealing with family or friends, a well worded contract signed by both parties will avoid problems resulting from a verbal arrangement.

    Nevertheless, if you find yourself engaged in legal action concerning a verbal agreement, be sure to gather everything you have to support your case, including emails, letters, related documents, photos, and witnesses.  The information will help the court establish the probability of whether a contract did or did not exist, and if a contract does exist, what the terms of the contract were.

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